Citation Nr: 0020398
Decision Date: 08/03/00 Archive Date: 08/09/00
DOCKET NO. 99-05 854 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
1. Whether the 0 percent disability evaluation assigned for
service-connected residuals of spontaneous pneumothorax is
appropriate.
2. Entitlement to service connection for chronic obstructive
pulmonary disease, claimed as secondary to service-connected
residuals of spontaneous pneumothorax.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
M. J. Bohanan, Counsel
INTRODUCTION
The appellant served on verified active duty from June 1964
to December 1967.
This appeal arises from a December 1998, Department of
Veterans Affairs Regional Office (VARO), Montgomery, Alabama
rating decision which granted entitlement to service
connection for spontaneous pneumothorax, evaluated as 0
percent disability, and denied entitlement to service
connection for obstructive pulmonary disease claimed as
secondary to service connected spontaneous pneumothorax.
FINDINGS OF FACT
1. Current manifestations of the appellant's service-
connected residuals of spontaneous pneumothorax include FEV1
79% of predicted value, FEV1/FVC 101% of predicted value and
DLCO 79% of predicted value.
2. Competent medical evidence does not indicated that the
appellant first manifested chronic obstructive pulmonary
disease during service, or that he has chronic obstructive
pulmonary disease as the result of his service-connected
residuals of spontaneous pneumothorax.
CONCLUSIONS OF LAW
1. Manifestations of the appellant's service-connected
residuals of spontaneous pneumothorax are 10 percent, but no
more than 10 percent, disabling. 38 U.S.C.A. § 1155 (West
1991); 38 C.F.R. § 4.97 Diagnostic Code 6845 (1999).
2. The appellant has not submitted evidence of a well
grounded claim for entitlement to service connection for
chronic obstructive pulmonary disease, claimed as secondary to
service-connected spontaneous pneumothorax. 38 U.S.C.A.
§ 5107 (West 1991).
REASONS AND BASES FOR FINDING AND CONCLUSIONS
Higher Rating
Regarding the appellant's claim for an increased rating, the
Board finds that the appellant has satisfied his statutory
burden of submitting evidence which is sufficient to justify a
belief that his claim is "well-grounded." 38 U.S.C.A.
§ 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet.App. 78
(1990). It is also clear that the appellant's claim has been
adequately developed for appellate review purposes by VARO,
and that the Board may therefore proceed to disposition of the
matter.
In evaluating requests for increased ratings, the Board
considers all of the medical evidence of record, including the
appellant's relevant medical history. Peyton v. Derwinski, 1
Vet.App. 282 at 287 (1991). Disability evaluations are
determined by the application of a schedule of ratings based
on average impairment of earning capacity. 38 U.S.C.A. § 1155
(West 1991); 38 C.F.R. Part 4 (1999). Separate diagnostic
codes identify the various disabilities. 38 C.F.R. § 4.1
(1999) requires that each disability be viewed in relation to
its history and that there be emphasis upon the limitation of
activity imposed by the disabling condition. 38 C.F.R. § 4.2
(1999) requires that medical reports be interpreted in light
of the whole recorded history. Schafrath v. Derwinski,
1 Vet.App. 589 (1991).
Where entitlement to compensation has already been
established and an increase in the disability rating is at
issue, the present level of disability is of primary concern.
Francisco v. Brown, 7 Vet.App. 55 (1994). However, the Board
notes that this claim is based on the assignment of an
initial rating for disability following an initial award of
service connection for that disability. In Fenderson v.
West, No. 96-947 (U.S. Vet. App. Jan. 20, 1999), the Court
held that the rule articulated in Francisco did not apply to
the assignment of an initial rating for a disability
following an initial award of service connection for that
disability. Fenderson, No. 96-947, slip op. at 8-9;
Francisco, 7 Vet. App. at 58.
The Board notes that it has characterized the issue on appeal
in order to comply with the recent opinion by the Court in
Fenderson v. West, No. 96-947 (U.S. Vet. App. Jan. 20, 1999).
In that case, the Court held, in pertinent part, that the RO
had never properly provided the appellant with a statement of
the case concerning an issue, as the document addressing that
issue "mistakenly treated the right-testicle claim as one for
an '[i]ncreased evaluation for service[- ]connected ...
residuals of surgery to right testicle' ... rather than as a
disagreement with the original rating award, which is what it
was." Fenderson, No. 96-947, slip op. at 17, emphasis in the
original. The Court then indicated that "this distinction is
not without importance in terms of VA adjudicative actions,"
and remanded the matter for the issuance of a statement of
the case. Id.
In this case, the appellant's pleadings clearly indicate that
he is aware that his appeal involves the RO's assignment of
an initial disability evaluation. Consequently, the Board
sees no prejudice to the veteran in characterizing the issue
on appeal to properly reflect the appellant's disagreement
with the initial disability evaluation assigned to his
service-connected disability. See Bernard v. Brown, 4 Vet.
App. 384 (1993).
The Board notes that in assigning an appropriate rating, the
policy against "pyramiding" of disability awards enumerated
by 38 C.F.R. § 4.14 must be considered. The assignment of a
particular Diagnostic Code is "completely dependent on the
facts of a particular case." Butts v. Brown, 5 Vet.App. 532,
538 (1993). One Diagnostic Code may be more appropriate than
another based on such factors as an individual's relevant
medical history, the current diagnosis and demonstrated
symptomatology. Any change in a Diagnostic Code by a VA
adjudicator must be specifically explained. See Pernorio v.
Derwinski, 2 Vet.App. 625, 629 (1992). In this case, the
Board considered whether another rating code is "more
appropriate" than the one used by the RO. See Tedeschi v.
Brown, 7 Vet.App. 411, 414 (1995).
A January 5, 1967 military treatment entry reported that the
appellant complained of pain in his chest of 1 hour's
duration which radiated into his left shoulder area. There
was no previous excessive exercise. It was observed that the
pain was clearly pleuritic of an abrupt onset. X-rays
revealed left apical pneumothorax. A January 9, 1967 entry
reported that x-rays were clear. A January 23, 1967 military
treatment entry reported that the appellant had been in the
hospital earlier for a first spontaneous pneumothorax. He
had not been treated with a tube, and it had spontaneously
resolved. On examination, he claimed that, on the day
before, he had developed a non-productive cough and chest
pain on the left with chills. The impression was of URI
(upper respiratory infection), rule out pneumothorax. At
follow-up, the appellant denied any problems.
The appellant's October 1967 military separation examination
reported that he provided a history of shortness of breath
and pain or pressure in his chest. The examiner noted a
history of left spontaneous pneumothorax in 1967 with no
recurrence since. His lungs were described as normal on
examination.
Private hospitalization records from Tallahassee Memorial
Hospital for a period of admission in October 1971 were
submitted, which indicated that the appellant presented with
complaints of pain in the left side of his chest. The chest
film in the emergency room showed evidence of pneumothorax on
the left. The appellant reported a previous similar episode.
The collapse was minimal, and tube decompression was
deferred. Follow up x-ray showed an increase in the collapse
with some atelectasis in the lower lobe and lingula of the
upper lobe. The appellant still wished to defer use of the
tube, and repeat chest film showed minimal improvement. His
condition at discharge was improved. He was to remain at
home and have follow up examination in one week. He was
advised to discontinue smoking. Final diagnosis was of
spontaneous pneumothorax, left, recurrent.
A VA examination was conducted in August 1998. The examiner
observed that the appellant was somewhat short of breath on
questioning and may have had some chest pain on the left side
(the side of the hemithorax). The appellant reported that he
sometimes had irregular heartbeats and sometimes, but very
seldom, night dyspnea. He denied cough or expectorations.
The examiner noted that he did not have productive cough. He
did have minimal dyspnea on exertion. He was not asthmatic.
He did not take any treatment, and had no periods of
incapacitation. Physical examination revealed no abnormal
findings on percussion and auscultation. Pertinent diagnoses
included status post spontaneous pneumothorax in 1966 and
1970, treated medically, minor chronic obstructive pulmonary
disease, and chronic sinusitis. Pulmonary function tests
revealed FEV1 was 79% of predicted value. FEV1/FVC was 101%
of predicted value. DLCO was 79% of predicted value. Mild
airflow obstruction with gas trapping and mild diffusion
impairment corrected with adjustment for alveolar volume was
noted. X-rays of the appellant's chest revealed flattening
of the hemidiaphragms, but no other evidence of emphysema or
other acute disease. There was no evidence of pneumothorax.
Residuals of a left pneumothorax are rated under traumatic
chest wall defect, pneumothorax, hernia, etc. 38 C.F.R.
§ 4.97 Diagnostic Code 6843 (1999).
The schedular criteria for rating purposes read as follows:
FEV-1 less than 40 percent of predicted
value, or; the ratio of Forced Expiratory
Volume in one second to Forced Vital
Capacity (FEV-1/FVC) less than 40
percent, or; Diffusion Capacity of the
Lung for Carbon Monoxide by the Single
Breath Method (DLCO (SB)) less than 40
percent predicted, or; maximum exercise
capacity less than 15 ml/kg/min oxygen
consumption (with cardiac or respiratory
limitation), or; cor pulmonale (right
heart failure), or; right ventricular
hypertrophy, or; pulmonary hypertension
(shown by Echo or cardiac
catheterization), or; episode(s) of acute
respiratory failure, or; requires
outpatient oxygen therapy. [100 percent]
FEV-1 of 40- to 55- percent predicted,
or; FEV-1/FVC of 40 to 55 percent, or;
DLCO (SB) of 40- to 55- percent
predicted, or; maximum oxygen consumption
of 15 to 20 ml/kg/min (with
cardiorespiratory limit). [60 percent]
FEV-1 of 56- to 70- percent predicted, or
FEV-1/FVC of 56 to 70 percent, or; DLCO
(SB) 56- to 65- percent predicted. [30
percent]
FEV-1 of 71- to 80- percent predicted,
or; FEV1/FVC of 71 to 80 percent, or;
DLCO (SB) 66- to 80- percent predicted.
[10 percent]
Or rate primary disorder.
Note (1): A 100 percent rating shall be
assigned for pleurisy with empyema, with
or without pleurocutaneous fistula, until
resolved.
Note (2): Following episodes of total
spontaneous pneumothorax, a rating of 100
percent shall be assigned as of the date
of hospital admission and shall continue
for three months from the first day of
the month after hospital discharge.
Note (3): Gunshot wounds of the pleural
cavity with bullet or missile retained in
lung, pain or discomfort on exertion, or
with scattered rales or some limitation
of excursion of diaphragm or of lower
chest expansion shall be rated at least
20-percent disabling. Disabling injuries
of shoulder girdle muscles (Groups I to
IV) shall be separately rated and
combined with ratings for respiratory
involvement. Involvement of Muscle Group
XXI (DC 5321), however, will not be
separately rated.
38 C.F.R. § 4.97 Diagnostic Codes 6840-6845 (1999).
Where there is a question as to which of two evaluations shall
be applied, the higher evaluation will be assigned if the
disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (1999).
The Board has reviewed all the evidence dating from the time
of the original claim and has determined that the evidence
supports a rating of 10 percent for service-connected
residuals of a spontaneous pneumothorax. Id.; Fenderson v.
West, No. 96-947 (U.S. Vet. App. Jan. 20, 1999). The evidence
reveals that current manifestations of the appellant's
spontaneous pneumothorax, which include FEV1 of 79% of
predicted, FEV1/FVC of 101% of predicted and DLCO of 79% of
predicted value, meet the level of severity which calls for an
10 percent disability rating 38 C.F.R. § 4.97 Diagnostic Codes
6840-6845 (1999). However, there is no indication that the
appellant has manifestations which would warrant a 30 percent
disability rating under the schedular criteria because his
FEV-1 and FEV-1/FVC are each more than 70 percent of predicted
value and his DLCO is more than 65 percent of predicted value.
Accordingly, a rating higher of 10 percent, but no higher, is
warranted.
Application of the extraschedular provision is not warranted
in this case. 38 C.F.R. § 3.321(b) (1999). There is no
objective evidence that this service-connected disability
presents such an exceptional or unusual disability picture,
with such factors as marked interference with employment or
frequent periods of hospitalization, as to render impractical
the application of the regular schedular standards. Hence,
referral by the RO to the Chief Benefits Director of VA's
Compensation and Pension Service, under the above-cited
regulation, was not required. See Bagwell v. Brown, 9
Vet.App. 337 (1996).
Service Connection
The appellant is also seeking service connection for chronic
obstructive pulmonary disease secondary service-connected
residuals of spontaneous pneumothorax. Under pertinent law
and VA regulations, service connection may be granted if a
disability was incurred or aggravated during service, or if
proximately due to, or the result of, service-connected
disability. 38 U.S.C.A. §§ 1101, 1110, 1131 (West 1991);
38 C.F.R. §§ 3.303, 3.310 (1999).
The initial question to be answered regarding the issue on
appeal is whether the appellant has presented evidence of a
well grounded claim; that is, a claim which is plausible. If
he has not presented a well grounded claim, his appeal must
fail and there is no duty to assist him further in the
development of his claim because such additional development
would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v.
Derwinski, 1 Vet.App. 78 (1990). Although the claim need not
be conclusive, it must be accompanied by supporting evidence
sufficient to justify a belief by a fair and impartial
individual that the claim is plausible. Tirpak v. Derwinski,
2 Vet.App. 609 (1992). In the absence of evidence of a well-
grounded claim there is no duty to assist the claimant in
developing the facts pertinent to his claim and the claim must
fail. Epps v. Gober, 126 F.3d 1464, 1467-68 (1997). As will
be explained below, it is found that his claims for
entitlement to service connection are not well grounded.
To establish that a claim for service connection is well
grounded the appellant must demonstrate the existence of a
current disability, the incurrence or aggravation of a
disease or injury in service, and a nexus between the current
disability and the in-service injury. Lay or medical
evidence, as appropriate, may be used to prove service
incurrence. Id. at 1468. Medical evidence is required to
provide the existence of a current disability and to fulfill
the nexus requirement. Id. at 1467-68.
The Board finds that the evidence does not establish that the
appellant's currently diagnosed minor chronic obstructive
pulmonary disease is the result of his service-connected
spontaneous pneumothorax. Other than his spontaneous
pneumothorax, his military treatment records merely reveal an
acute and transitory upper respiratory infection in 1967, and
his post service medical records are devoid of any complaints
or findings referable to chronic obstructive pulmonary disease
until August 1998, more than 30 years after his military
separation. Further, there is no medical opinion linking
chronic obstructive pulmonary disease to his service-connected
spontaneous pneumothorax.
Because there is no objective medical evidence to establish
that the appellant currently has chronic obstructive pulmonary
disease that is the result of service-connected spontaneous
pneumothorax, it is found that the claim presented is not well
grounded. Rabideau v. Derwinski, 2 Vet.App 141, 143 (1992)
(lack of evidence of the claimed disability related to in-
service incurrence or aggravation). Therefore, VA's duty to
assist the appellant in the development of this issue is not
for application.
Further, the appellant's general contentions of record are of
insufficient probative value so as to be dispositive of the
issues presented on appeal. See Espiritu v. Derwinski, 2
Vet.App. 492 (1992) (holding that the Board is not required to
entertain unsupported lay speculation on medical issues).
Although the appellant claims that he currently has chronic
obstructive pulmonary disease as a result of his service-
connected spontaneous pneumothorax, his assertions of a
medical diagnosis and opinion on causation alone are not
probative. See also, Moray v. Brown, 5 Vet.App. 211 (1993);
Grottveit v. Brown, 5 Vet.App. 91 (1993).
Where claims are not well grounded VA may be obligated under
38 U.S.C.A. § 5103(a) to advise a claimant of evidence needed
to complete his application. This obligation depends upon the
particular facts of the case and the extent to which the
Secretary of the Department of Veterans Affairs has advised
the claimant of the evidence necessary to be submitted with a
VA benefits claim. Robinette v. Brown, 8 Vet.App. 69 (1995).
In this case, VARO fulfilled its obligation under section
5103(a) in its Statement of the Case, in which the appellant
was informed that the reason for the denial of his claim was
that there was no objective medical evidence to substantiate
that he currently has chronic obstructive pulmonary disease
that was incurred or aggravated during service, or that
manifested as the result of service-connected spontaneous
pneumothorax. Additionally, by this decision, the Board is
informing the appellant of what is necessary to make his claim
well grounded.
ORDER
A 10 percent disability rating for the appellant's service-
connected residuals of spontaneous pneumothorax is granted,
subject to controlling regulations applicable to the payment
of monetary benefits.
The claim for entitlement to service connection for chronic
obstructive pulmonary disease, claimed as secondary to
service-connected residuals of spontaneous pneumothorax, is
not well grounded and is denied.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals